Westport Lumber Co. v. Harris

• Decision Date: 04 May 1908
• Citation: 110 S.W. 609,131 Mo.App. 94
• Parties: WESTPORT LUMBER COMPANY, Respondent, v. C. A. HARRIS, Defendant; EMMA PORTER HALL et al., Appellants
• Court: Kansas Court of Appeals

110 S.W. 609

131 Mo.App. 94

WESTPORT LUMBER COMPANY, Respondent, v. C. A. HARRIS, Defendant;

EMMA PORTER HALL et al., Appellants

Court of Appeals of Missouri, Kansas City

May 4, 1908

Appeal from Jackson Circuit Court.--Hon. Thos. H. Reynolds, Special Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Bowersock & Hall for appellants.

(1) The foundation of the right to a mechanic's lien is the existence of a contract for work and materials with the owner or proprietor of the property to be charged, or with his agent, trustee, contractor, or subcontractor. R. S. 1899; sec. 4203; Hause v. Thompson, 36 Mo. 450; Hause v. Carroll, 37 Mo. 578; Lumber Co. v. Stepp, 157 Mo. 366; Wilson v. Lubke, 176 Mo. 210; Garrett v. Berry, 3 Mo.App. 197; Barker v Berry, 8 Mo.App. 446; Planing Mill v. Brundage, 25 Mo.App. 286; Duross v. Broderick, 78 Mo.App. 260; Steel Range Co. v. Jeffers, 79 Mo.App. 174; Jose v. Hoit, 106 Mo.App. 594; Hengstenberg v. Hoyt, 109 Mo.App. 623. (2) When it is claimed that the contract is made with the agent of the owner or proprietor, the evidence of the agency must be so clear as to leave no reasonable doubt in the mind of the triers of the facts. Duross v Broderick, 78 Mo.App. 260; Curtin-Clark Hdw. Co. v Churchill, ___ Mo. ___, 107 S.W. 476; Kuenzel v. Stevens, 155 Mo. 280. (3) The burden is on the plaintiff to show agency. Winslow Brothers v. McCully Stone Mason Co., 169 Mo. 236; Norton v. Clark, 85 Maine 357. (4) The materials must be furnished in reliance upon the right to a mechanic's lien and plaintiff must prove this fact to establish his lien. Rand v. Grubb, 26 Mo.App. 591; Crane v. Neel, 104 Mo.App. 177. (5) There can be no lien on building apart from the lot under the facts in this case. R. S. 1899, secs. 4205, 4206; Wright v. Beardsley, 69 Mo. 548; Williams v. Porter, 51 Mo. 441; Ranson v. Sheehan, 78 Mo. 668; Planing Mill Co. v. Christophel, 60 Mo.App. 106; State v. Hailey, 71 Mo.App. 200; Mayes v. Murphy, 93 Mo.App. 37. (6) Porter T. Hall had no interest in lot 12, block 6, Hill Crest, to which a mechanic's lien could attach. R. S. 1899, sec. 4203; Sibley v. Casey, 6 Mo. 154; Squires v. Fithian, 27 Mo. 134; Burke v. Seeley, 46 Mo. 334; Wilkins v. Litchfield, 69 Ia. 465, 29 N.W. 447; Thomas v. Ellison, 57 Ark. 481, 22 S.W. 95; Hardware Co. v. Wilson, 56 Ark. 380, 19 S.W. 974; Gray v. Walker, 16 S.C. 143; Sheer v. Cummings, 80 Tex. 294, 16 S.W. 37; Hubbs v. Jolly, 41 Kan. 537. (7) Under the general denial the Statute of Frauds may be raised by objection to the evidence or by motion to strike out. Springer v. Kleinsorge, 83 Mo. 152; Hackett v. Watts, 138 Mo. 502; Hurt v. Ford, 142 Mo. 283; Phillips v. Hardenburg, 181 Mo. 473; Thomas v. Ramsey, 47 Mo.App. 84; Van Idour & Co. v. Nelson, 60 Mo.App. 523; Young & Branson v. Ledford, 99 Mo.App. 565. (8) There was no such performance as would do away with the question of the Statute of Frauds. The contract must be made with the person who is the owner at the date of the contract. McAdow v. Sturtevant, 41 Mo.App. 220; Bruce v. Hoos, 48 Mo.App. 161. (9) It is too late to raise the question of charging Porter T. Hall's interest, if any, in lot 12, block 6, Hill Crest, an addition to Kansas City, Mo. Barker v. Berry, 8 Mo.App. 446. (10) John A. McMaster's interest in lot 12, block 6, Hill Crest is not subject to mechanic's lien.

Botsford, Deatherage & Young for respondent.

(1) The first point made by appellants, that Porter T. Hall was not the agent of his mother so as to bind her interest in the property in question with the lien for the materials furnished by plaintiff, is not well taken. O'Leary v. Roe, 45 Mo.App. 567; Lumber Co. v. Nelson, 71 Mo.App. 119; Price v. Merritt, 55 Mo.App. 640; Kuenzel v. Stevens, 155 Mo. 280; Burgwald v. Weippert, 49 Mo. 60; Winslow Bros. Co. v. Stone Mason Co., 169 Mo. 236; K. C. H. P. B. Co. v. Pratt, 114 Mo.App. 643; Curtin-Clark Co. v. Churchill, 104 S.W. 476. (2) In line with the above decisions, the following decisions from other States are also directly in point: Moore v. Jackson, 49 Cal. 109; Henderson v. Connelly, 123 Ill. 98, 14 N.E. 1; Paulson v. Manske, 126 Ill. 72, 18 N.E. 275; Lumber Co. v. Jones, 187 Ill. 203, 58 N.E. 347; Crandall v. Sorg, 198 Ill. 62, 64 N.E. 769; Shapleigh v. Hill, 21 Colo. 419, 41 P. 1108; Jameson v. Gille, 98 Ia. 490, 67 N.W. 396; Sherrer v. Williams, 56 Kas. 252; Hilton v. Merrill, 106 Mass. 528; Davis v. Humphrey, 112 Mass. 309; Carew v. Stubbs, 155 Mass. 549, 30 N.E. 219; Cue v. Whitehall, 156 Mass. 205; Borden v. Mercer, 163 Mass. 7, 39 N.E. 413; Hill v. Gille, 43 Minn. 441, 42 N.W. 294; Sheehy v. Fulton, 38 Neb. 699, 57 N.W. 395; Lumber Co. v. Mosher, 88 Wis. 672, 60 N.W. 264; 20 Am. & Eng. Enc., 303, 312, 314, 315, 322, 328, 331; Jonte v. Gille (Tenn.), 39 S.W. 750; Ragan v. Howard, 97 Tenn. 334, 37 S.W. 136. (3) The second point made by appellants in their brief, that these materials were not furnished by respondent in reliance upon the mechanic's lien, is not well taken. (4) There is no point about the Statute of Frauds in this case. It was competent for Mrs. Porter to make her son her agent to put up this building and to bind the title to the building and lot, without having the agency manifested by writing. (5) It was not necessary to make Mrs. McMaster a party to this suit. She acquired her title in August, 1906, which was the next month following the bringing of this suit on July 19, 1906. And a judgment in this case will carry any title acquired by the purchase of Mrs. McMasters from Mrs. Hall after the bringing of this suit.

OPINION

JOHNSON, J.

--Action to enforce a mechanic's lien. Material facts disclosed by the evidence are as follows: Emma Porter Hall owned lot 12 in block 6 of Hill Crest, an addition to Kansas City, and orally agreed with her son, Porter T. Hall, and her daughter, Mrs. Allen Logan, that they might build a dwelling house on the lot at their own cost, sell the property after the completion of the house, and pay her seventeen hundred and fifty dollars (the agreed value of the lot) out of the proceeds of the sale, retaining for themselves the remainder of the proceeds. Porter T. Hall testified:

"Q. You took possession of that lot described in that contract and proceeded to have that house erected, did you? A. Why, I erected the house on it, yes, sir. Q. Now, what agreement, if any, did you have with your mother pertaining to the erection of that house? A. Well, my sister and I were to provide the money and erect the house and when the house was sold, my mother was to receive $ 1,750.00 out of the proceeds of sale to pay for her fifty feet. . . . Q. Now, you say the agreement with your mother was that you and Mrs. Logan would have the house constructed and then the house would be sold and your mother was to be paid the $ 1,750? A. Why, she was to receive the first $ 1,750 paid in, in payment for her lot and we were to get the balance. Q. In the meantime, the title was to remain in her? A. The title was to remain in her, yes, sir. Q. Until the house was sold? A. Yes, sir. . . . . Q Well, now, you did not have any contract with your mother binding you to build any house, did you? A. Well, no, sir. She gave me permission to build on there."

Pursuant to this agreement, Porter T. Hall and his sister decided on the character and cost of the dwelling they wished to build and Porter entered into a contract with defendant Harris by which Harris undertook to build a house at a cost of $ 5,072. Harris bought of plaintiff lumber and other materials of the value of $ 862.29, to be used in the construction of the building and which were so used and for which he failed to pay. The manager of plaintiff testified:

"Q. Upon what did you rely when you furnished those materials--upon what credit? A. Well, it is customary with the dealers in the city to rely upon the property that the material goes into. Q. On a right to a mechanic's lien? A. On a right to a mechanic's lien, yes, sir. Q. Do you know who was the owner of the property? A. Mr. Porter T. Hall was given to me at the time as the owner of the property. Q. Did you see the contract that Mr. Harris had? A. Yes, sir. Q. A written contract? A. It was on a printed form, filled out."

This suit was brought July 19, 1906. At that time the record title to the lot still stood in the name of Mrs. Hall. On information that John A. McMaster had bought the property, plaintiff made him a party defendant, but it turned out that the sale had been made to Elizabeth D. McMaster, wife of John A. McMaster, but on account of her illness which prevented the execution of certain instruments relating to the transaction, the deed from Mrs. Hall to Mrs. McMaster was not delivered and recorded until after the commencement of this suit. Out of the proceeds of this sale, Mrs. Hall received the sum of $ 1,750. Mrs. McMaster was not made a party defendant. By consent of parties, a jury was waived and the cause was submitted to the court who gave personal judgment against Harris for the full amount of the judgment and decreed "that this judgment be and it is a special mechanic's lien against the property described in the petition, to-wit, lot 12 in block 6 of Hill Crest, an addition to Kansas City in Jackson County, Missouri, and the two-story shingle and frame residence building numbered 2812 Harrison street situated upon the above described lot, and if no sufficient property of the defendant, Harris, be found to satisfy said judgment and costs, that the same or the residue thereof be levied on the property above described, and that special execution issue in accordance herewith." From this judgment all of the defendants except Harris appealed.

The principal question to engage our attention is whether plaintiff furnished the materials for the building...